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Enhancing the Enforcement Authority of Immigration Officers [59 FR 42406 - 42420][FR 48-94]
FR 42406 -
August 17, 1994
BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1442-92; AG ORDER 1907-94]
Enhancing the Enforcement Authority of Immigration Officers
Immigration and Naturalization Service, Justice.
This final rule implements changes to Immigration and Naturalization Service (Service) procedures that relate to carrying firearms, expanding the arrest and service of process authority of immigration officers beyond matters involving violations of the immigration laws, and requiring that every alien fourteen years of age or older, against whom deportation proceedings are commenced, shall be fingerprinted and photographed and that such fingerprints and photographs shall be made available to other law enforc
ement agencies upon request. This rule also codifies existing policy guidelines regarding the authority of immigration officers under the direction and control of the Attorney General to arrest persons, carry firearms, serve process, and perform other related enforcement functions. The final rule affirms both existing and newly-developed policies and ensures the consistent application of these policies by all immigration officers involved in the enforcement of the immigration laws.
August 17, 1995.
FOR FURTHER INFORMATION CONTACT:
Kathryn E. Sheehan, Special Assistant, Immigration and Naturalization Service, 425 I Street, NW., Room 7246, Washington, DC 20536, telephone (202) 514-3032.
On October 14, 1992, at 57 FR 47011-47020, the Attorney General published a proposed rule to implement section 503 of the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649 (8 U.S.C. 1357), and requested comments from interested parties by November 30, 1992. Section 503(a) of IMMACT amended section 287 of the Immigration and Nationality Act (Act). Section 503(a) authorizes immigration officers, when performing duties relating to the enforcement of the immigration laws and when authorized under regula
tions prescribed by the Attorney General, to arrest without a warrant any person likely to flee before a warrant can be obtained, for any offense against the United States committed in the officer's presence or for any felony cognizable under the laws of the United States if the officer has reasonable grounds to believe the person to be arrested has committed or is committing such a felony. Section 503(a) of IMMACT also authorizes immigration officers, under regulations prescribed by the Attorney General,
to carry firearms and to execute and serve any orders, warrants, subpoenas, summonses, or other process issued under the authority of the United States.
Section 503(b) of IMMACT requires fingerprinting and photographing of any alien fourteen years of age or older against whom deportation proceedings have been commenced under section 242 of the Act, and dictates that such fingerprints be made available to law enforcement agencies upon request. Finally, section 503(a) of IMMACT requires, as a condition of immigration officers' authority to make warrantless arrests under amended section 287(a)(5)(B) for felonies, the Attorney General to publish final regulati
ons that define the categories of immigration officers who may use force, including deadly force, and the circumstances under which such force may be used; establish standards with respect to enforcement activities of the Service; require that no immigration officer be authorized to make arrests under section 287(a)(5)(B) of the Act unless that officer has been certified as having completed a training program covering such arrests and standards; and establish an expedited internal review process for violati
ons of such standards.
The proposed rule set forth regulations implementing these provisions of section 503 of IMMACT. A total of 235 comments were received, reviewed, and considered in writing this final rule.
Five commenters stated that the proposed rule failed to comply with section 4(b) of E.O. 12291 as it relates to the comments of persons directly affected by the rule, and sections 2(a) and 2(b)(2) of E.O. 12778 as they relate to adherence to certain requirements in promulgating new regulations and reviewing existing regulations.
Many of the provisions of E.O. 12291 pertain only to major rules. In the proposed rule, the Attorney General stated that this rule is not a major rule within the meaning of section 1(b) of E.O. 12291. Therefore, section 4(b) of that Executive Order is inapplicable. With regard to E.O. 12778, the Office of Management and Budget (OMB) issued a Memorandum for Agency Regulatory Contacts dated January 9, 1992, stating that there are two ways that an agency may certify compliance to OMB as part of the regulato
ry review process. An agency may attach a certification of compliance with E.O. 12778 to Standard Form 83 signed by an attorney, or an agency may insert a statement of such certification in the preamble to the draft rule itself. The Department of Justice (Department), following review of the rule in light of E.O. 12778 and in compliance with that Executive Order, attached a certification of compliance. Accordingly, the Department and the Service believe that the requirements of E.O. 12291 (which was supe
rseded by E.O. 12866 on September 30, 1993), 12866, and 12778 have been met.
One commenter stated that the proposed rule may be in violation of the Service's contract with its collective bargaining unit because the required negotiations have not occurred regarding those aspects of the rule that constitute substantive changes in conditions of employment affecting the bargaining unit. During development of the final rule, negotiations occurred with both the National Immigration and Naturalization Service Council and the National Border Patrol Council.
One commenter asserted that the existing Service Firearms Policy could not be changed because it constituted an agreement with the employee unions. The Service disagrees because there is no agreement between it and the employee unions regarding the existing Service Firearms Policy.
One commenter pointed out that the proposed rule failed to indicate whether the regulations would preempt state or local laws regarding peace officer status. The regulations implement new statutory authorities pertaining to arrests and service of process for federal matters and would not affect current practices with states. State law may provide immigration officers with peace officer status that would also provide the authority to make arrests for state law violations. However, unless specifically auth
orized as a peace officer under state law, an immigration officer's authority to enforce the state statute is that of an ordinary citizen. The limitations and liabilities associated with such action are defined in state law.
One commenter stated that the proposed regulations appeared to conflict with sections 101(a)(18) and 235 of the Act as they relate to the definition of "immigration officer" and an immigration officer's authority to administer oaths, take and consider evidence, and require by subpoena the attendance and testimony of witnesses and production of documents. The Service disagrees. Section 101(a)(18) of the Act authorizes the Attorney General to designate, individually or by regulation, any employee or class o
f employees to perform the functions of an immigration officer specified by the Act or any section thereof. In the proposed regulations, the Attorney General accomplished this by designating those categories of immigration officers authorized to perform the functions of sections 242 and 287 of the Act. The commenter stated incorrectly that Sec. 287.5(a) of the proposed rule required certain immigration officers to obtain individual or class designation in order to be authorized to interrogate and administ
er oaths. The proposed rule in Sec. 287.5(a) allowed any immigration officer as defined in 8 CFR 103.1(q) to interrogate and administer oaths. With regard to subpoenas, the proposed rule made no changes to the current regulations in Sec. 287.4 pertaining to the subpoena process.
A number of commenters criticized the proposed rule for not providing a sufficient statement of the legislative history of section 503 of IMMACT in the Summary section. An adequate description of the requirements of section 503 was provided by the notice of proposed rulemaking in the Supplementary Information section of the rule in accordance with the Federal Register's document drafting requirements.
One commenter recommended that the effective date of the final rule for other than permanent full-time (OTP) immigration inspectors be extended to two years from date of publication in the
in order to have sufficient time to provide both basic immigration law enforcement training and training in the new enforcement standards. Such an extension is impracticable as many permanent full-time immigration officers will also need to receive both basic immigration law enforcement training and training in the new enforcement standards. It would be inappropriate to allow the OTP immigration officers to take more time in meeting the training timetable than the permanent full-time employees because th
is would result in having OTP immigration inspectors operating under the old regulations while working side by side with permanent full-time immigration inspectors recently trained in, and operating under, the new regulations. This situation would not only promote procedural inconsistencies and confusion, but also subject the public to two different regulatory standards at ports of entry. The Attorney General has delayed implementation of the final rule to one year from date of publication in order to ens
ure training of approximately 10,000 immigration officers in the new enforcement authorities and standards. The Attorney General recognizes the difficulties inherent in meeting this rigorous training schedule. However, she is committed to ensuring a consistent and unified implementation approach nationwide that only one delayed implementation date can provide.
Sections 242.2 and 287.7 - Apprehension, Custody, and Detention and Detainer Provisions
One commenter stated that the proposed rule was contradictory by requiring that an immigration officer successfully complete basic immigration law enforcement training in order to be authorized to issue a detainer in Sec.Sec. 242.2(a) and 287.7(a), yet not requiring the successful completion of basic immigration law enforcement training in order to be authorized to issue an order to show cause in Sec. 242.1(a) or a warrant of arrest in Sec. 242.2(c). A detainer is the mechanism by which the Service reques
ts that the detaining agency notify the Service of the date, time, or place of release of an alien who has been arrested or convicted under federal, state, or local law. The Service agrees with the commenter that the standards for issuance of a detainer are no greater than those for issuance of an order to show cause and a warrant of arrest for immigration violations. The final rule deletes the requirement of successful completion of basic immigration law enforcement training for authorization to issue de
tainers. Training in immigration law and procedure is necessary to issue detainers, but training as a law enforcement officer is not needed to effectively conduct this portion of the immigration process. This does not eliminate the immigration officer's responsibility to ensure that detainers are issued only to aliens who are amenable to exclusion or deportation proceedings.
Two commenters stated that the authority to issue a warrant of arrest in Sec. 242.2(c) should include the authority to serve the warrant of arrest in Sec. 287.5(e)(2). The Service disagrees. Issuance of a warrant of arrest entails signature by an authorized immigration officer, while service of the warrant entails a step-by-step process requiring training and proficiency in service of process procedures. The two authorities are separate and distinct processes.
Section 287.1 - Definitions
One commenter urged the inclusion of the Other than Permanent Full-time (OTP) Immigration Inspector Basic Training Course in the definition of "basic immigration law enforcement training" in Sec. 287.1(g). The Service agrees and this section has been amended accordingly. However, an OTP immigration inspector will not be authorized to make arrests for federal offenses under section 287(a)(5)(A) and (B) of the Act until such time as he or she converts status to permanent full-time and successfully completes
training applicable to that position.
Four commenters urged the Service to expand the definition of "basic immigration law enforcement training" in Sec. 287.1(g) to include prior law enforcement experience or training with other federal, state, or local agencies as well as lengthy Service experience or other miscellaneous Service training courses apart from the basic training courses. The Service acknowledges that successful completion of one or more training courses presented by the Federal Government or a state-certified program may be subst
antially equivalent to basic immigration law enforcement training. The final rule provides a mechanism for considering other training by expanding the definition of "basic immigration law enforcement training" to include training that is substantially equivalent thereto as determined by the Commissioner with the approval of the Deputy Attorney General. The Commissioner's review is necessary to ensure that each immigration officer has all the required federal and, in particular, immigration law enforcement
training. For example, an immigration officer who was employed previously in another Federal agency as a special agent, and thus had training in general Federal laws, would still need immigration law enforcement training.
Sections 287.5 and 287.9 - Exercise of Power by Immigration Officers and Criminal Search Warrant and Firearms Policies
Ninety-eight commenters expressed concern that the proposed regulations precluded immigration officers from carrying firearms in Sec.Sec. 287.5(f) and 287.9(b), effecting arrests for immigration violations in Sec.Sec. 287.5(c)(1),(2), and (5), and serving process in Sec. 287.5(e) while off-duty. The commenters stated that it is not uncommon for immigration officers or other federal law enforcement officers in an off-duty status to receive telephone calls at home from other federal, state, or local law enfo
rcement officers requesting their immediate assistance. The commenters pointed out that only Sec.Sec. 287(a)(5)(A) and (B) of the Act, regarding arrest authority for federal offenses, stipulate that an immigration officer must be "performing duties relating to the enforcement of the immigration laws at the time of the arrest" and that this language should not be included in those sections of the proposed rule regarding the other enforcement authorities. In drafting the proposed rule, the Service did not i
ntend to impair an immigration officer's ability to place himself or herself on-duty when necessary for the purpose of enforcing the immigration laws of the United States. To avoid misinterpretation, the Service has removed the language "performing duties relating to the enforcement of the immigration laws at the time of the arrest" from the enforcement authorities except where required by statute. The Service has also removed the language "In an on-duty status" from Sec. 287.9(b). Administrative guideli
nes will be developed to explain when an immigration officer on his or her own initiative may place himself or herself in an on-duty status.
Fifty-two commenters objected to establishing a separate process for Service managers, including district directors, deputy district directors, officers in charge, and assistant officers in charge, to request the Commissioner's authorization to exercise each of the enforcement authorities. The commenters stated that this process would hold managers to a higher standard than their subordinates, many of whom are trainees still on probation, who are automatically empowered to exercise an authority if they hav
e completed the requisite training. The commenters asserted that this process violates standard management hierarchy, and pointed out that the vast majority of affected individuals are career immigration officers who not only have completed basic immigration law enforcement training, but also have extensive experience in field enforcement operations. In fact, due to the Service's limited enforcement resources, these managers participate frequently in Service field enforcement operations or respond to requ
ests for assistance from other law enforcement agencies when their subordinates are out of the office conducting field operations. The commenters asserted that managers in other agencies within the Department, including the Federal Bureau of Investigation, are vested with the same powers and authorities as their subordinates, and the Service's managers should not be treated differently if they have undergone the requisite training.
The Service and the Department agree that a more streamlined process should be established for granting enforcement authorities to Service managers who are trained and who have maintained qualifications. The rationale behind the proposed rule's segregation of managers was to ensure that law enforcement authorities are granted only to those immigration officers, regardless of rank, who need the authorities and are fully trained in how to exercise them. To accomplish this task more expediently while ensurin
g the existence of a well-trained cadre of immigration officers at all levels in the agency, the final rule provides enforcement authorities to managers who have successfully completed basic immigration law enforcement training without creating a separate authorization process. The final rule also provides a mechanism for empowering those managers, as well as other immigration officers within one of the designated categories, who have not successfully completed one of the basic immigration law enforcement
training courses by allowing them either to attend one of the basic immigration law enforcement training courses or to seek a determination from the Commissioner, with the Deputy Attorney General's approval, that they have training substantially equivalent thereto.
A number of commenters stated that each immigration officer should have the power to exercise all of the enforcement authorities as long as each such officer is trained and certified. They stated that the proposed regulations created a rigid class system wherein only certain categories of immigration officers would be authorized to exercise certain enforcement functions and that this system impedes the Service's ability to respond to operational emergencies. In addition, some commenters stated that the en
forcement role of immigration inspectors at ports of entry and the field review work and office interviews conducted by immigration examiners necessitate empowering both inspectors and examiners with all of the enforcement authorities. The Service and the Department disagree. In drafting the proposed rule, the Service used the Attorney General's "Guidelines for Legislation Involving Federal Criminal Law Enforcement Authority" (Guidelines) dated June 29, 1984. Although the Guidelines were developed to gui
de federal agencies in preparing legislative proposals concerning future grants of law enforcement authority, the Guidelines' overriding policy is that an officer should be given only the authorities that the officer needs and has been trained to execute. The Guidelines require an agency to extend grants of law enforcement authority only to those employees who have graduated from an accredited course of training in the exercise of that authority and only where a significant likelihood exists that, in the c
ourse of performing their assigned duties, the employees will frequently encounter situations in which it is necessary to exercise that authority. Each category of immigration officers has a different mission, and only those categories who satisfied the Attorney General's criteria were granted one or more of the enforcement authorities. In reviewing these regulations, consistent with the Department's review of other regulations, guidelines, and policies affecting criminal law enforcement authority in the
Executive Branch, the Department believes that the same delineation of authorities is both appropriate and effective. The following chart summarizes the categories of immigration officers who are authorized to exercise the principal enforcement authorities.
Some commenters stated that immigration inspectors at ports of entry need the authority to execute arrest warrants for immigration violations to conform with historical practices of the United States Attorneys offices. In light of existing practices, the Service and the Department agree that immigration inspectors at ports of entry do need to continue executing arrest warrants for both criminal and administrative immigration violations. However, immigration inspectors do not need the authority to execute
arrest warrants for non-immigration criminal violations. The investigation of non-immigration criminal offenses associated with the authority to execute an arrest warrant for non-immigration violations is beyond the scope of an immigration inspector's responsibilities. Accordingly, the structure of Sec. 287.5(e) in the final rule has been changed to focus on the distinction between "immigration" and "non-immigration" offenses, and to grant authority to immigration inspectors to execute arrest warrants for
The revised language of Sec. 287.5(e) also specifies, as the structure of the proposed rule specified, that detention enforcement officers are authorized only to execute warrants of arrest for administrative immigration violations, not warrants for a criminal arrest that can be executed by other officers. In carrying forward this distinction, the Commissioner is authorized to designate additional officers (individually or as a class) to execute warrants of arrest for administrative immigration violations,
while approval of the Deputy Attorney General must be sought to designate additional officers (individually or as a class) to execute criminal arrest warrants. Finally, Sec. 287.5(e)(2)(ii) grants authority to execute criminal warrants of arrest for non-immigration violations only to border patrol agents, special agents, deportation officers, their supervisors and managers, and immigration officers who need such authority and who have been designated by the Commissioner with the approval of the Deputy Atto
Several commenters questioned the efficacy of granting immigration examiners the power to arrest for immigration violations in Sec.Sec. 287.5(c)(1) and (2) yet not authorizing them to carry firearms in Sec. 287.5(f). Similarly, other commenters stated it was inappropriate to authorize detention enforcement officers to carry firearms yet preclude them from effecting any arrests. The Service and the Department disagree. The ability to effect an arrest is not conditioned upon the carrying of a firearm. Oth
er federal, state, and local law enforcement officers' duties require them to make arrests without a firearm, and they do so without incident. Similarly, the potential need and ability to use deadly force to defend an officer does not imply a concomitant need for arrest authority. The two authorities are not necessarily concomitant. Detention enforcement officers do not need arrest authority. Detention enforcement officers' principal duties are to transport and guard detained individuals who have alread
y been placed under arrest. They also execute warrants of arrest for administrative immigration violations. In order to clarify the detention enforcement officers' authorities, Sec. 287.5(c)(6) has been added to the final rule.
Five commenters questioned whether immigration examiners and deportation officers who perform inspectional duties at ports of entry on an overtime basis would be precluded from exercising the enforcement authorities granted to immigration inspectors. Immigration examiners, including free trade examiners, and deportation officers are considered to be immigration inspectors when in the uniform of an immigration inspector and performing inspections or supervising other immigration inspectors performing inspec
tions, provided all training requirements for immigration inspectors have been met. To avoid misinterpretation, the Service has added language to the rule stipulating that immigration examiners are authorized to exercise the same enforcement authorities granted to immigration inspectors when they are in the uniform of an immigration inspector and performing inspections or supervising other immigration inspectors performing inspections. Deportation officers are already listed as authorized to exercise the
same enforcement authorities granted to immigration inspectors, but Sec. 287.5(b) has been amended for clarification to include deportation officers only when in the uniform of an immigration inspector and performing inspections or supervising other immigration inspectors performing inspections.
Two commenters stated that certain immigration officers stationed in Service offices overseas should be granted law enforcement authority. They also noted that immigration officers stationed overseas occasionally must work on cases within the United States. The Service and the Department note, however, that immigration officers cannot exercise any of the enforcement authorities while working in foreign countries. When overseas officers are assigned to a duty post within the United States, they assume the
power to exercise all of the criminal and civil enforcement authorities assigned to the applicable category of immigration officers, provided all training requirements have been met. For example, a special agent overseas who is detailed to an assignment in the United States has all of the enforcement authorities granted to special agents, provided that the detailed special agent has met all training requirements for special agents. However, overseas immigration officers do need the authority to interroga
te, administer oaths, and take and consider evidence. Accordingly, Sec. 287.5(a) in the final rule has been amended to grant such officers authority to interrogate, administer oaths, and take and consider evidence in or outside the United States.
One commenter stated that the proposed rule in Sec. 287.8(c)(2) should be changed to remove the requirement that the immigration officer must document, on appropriate Service forms, the fact that an arrestee was advised of his or her rights. The commenter pointed out that many United States Attorneys accept advice of rights given in the presence of witnesses in lieu of a form. The Service disagrees. Immigration officers must document advice of rights on appropriate Service forms, consistent with the prac
tice of other components within the Department.
One commenter suggested that proposed Sec. 287.8(c)(2) incorrectly stated that a person arrested and charged with a criminal violation shall be advised of the appropriate rights as required by law at the time of arrest, or as soon thereafter as practicable. The commenter pointed out that current law requires that such warnings be provided only prior to a custodial interrogation. The commenter further stated that many criminal arrests are made where the arresting officer does not want to conduct a custodia
l interrogation and therefore should not be required to advise the person arrested of the appropriate rights. The Service and the Department disagree with the commenter's interpretation of the rule. First, the rule states that the person arrested shall be advised of the appropriate rights as required by law. The law, including constitutional standards, determines when advice of rights must be provided. Second, to the extent that the rule encourages a uniform advice of rights at or shortly after the poin
t of arrest, it serves as an appropriate reminder of these constitutional standards and establishes a practice that will prevent situations where interrogations are wrongfully undertaken without proper advice of rights.
One commenter stated that the definition of a designated pursuit vehicle in Sec. 287.8(e)(1) should stipulate that the vehicle must be a sedan in order to conform to the Border Patrol Vehicle Pursuit Policy. The Service disagrees. Other enforcement programs will be developing their own vehicle pursuit policies that may permit the use if vehicles other than sedans. The proposed regulations authorized certain categories of immigration officers, including special agents and deportation officers, to initiate
a vehicular pursuit. In the final rule, special agents and deportation officers have been removed from the list until such time as the Investigations and the Detention and Deportation Programs have developed their specific vehicle pursuit policy, the policy is approved by the Commissioner, and all of the special agents and/or deportation officers authorized to initiate vehicular pursuits have undergone the requisite pursuit driving training and received training in the new policy.
Section 287.10 - Expedited Internal Review Process
One commenter questioned the legitimacy of the Service's Office of Internal Audit, stating that the Service is trying to create by regulation an office similar in function to the Office of Professional Responsibility, which was transferred from the Service to the Office of the Inspector General of the Department pursuant to section 102(d) of the Inspector General Act Amendments of 1988, Pub. L. No. 100-504. The Service and the Department disagree. The Office of Internal Audit was established in the reorga
nization of the Service and approved by the Attorney General in April 1991. Regulations have been drafted wherein the Director of Internal Audit is responsible, in part, for providing the capability to investigate alleged misconduct by Service employees and for coordinating that program with other agencies within the Department. The transfer of the Office of Professional Responsibility from the Service to the Office of the Inspector General neither relieved Service management from responsibility for ensur
ing proper employee conduct nor precluded Service management from exercising its fundamental management authorities to identify and correct employee misconduct.
One commenter stated that the proposed rule in Sec. 287.10 was insufficiently specific because it stated only that allegations of misconduct would be referred "promptly" and did not: describe how the process for resolution would be expedited; describe the circumstances under which a Service employee, against whom allegations were made, might not be notified of the allegations; indicate that more serious allegations would be handled differently than less serious ones; call for the involvement of operational
peers or supervisors in resolving allegations; and eliminate from involvement in the process management officials who lack law enforcement experience. It is not appropriate to incorporate the specific requirements for the handling of alleged violations of the enforcement standards into administrative rulemaking, and therefore no change has been made to the final rule.
Sixty-nine advocacy organizations and individuals filed substantially similar or identical comments stating that the regulations are legally insufficient to meet the legislative mandate set forth by Congress. These comments are generally summarized below and followed by specific comments and responses.
The commenters stated that the regulations are legally insufficient because they fail to comply with the congressional mandates: (1) to define the enforcement authority; (2) to elaborate on the scope and limits of such authority and to formulate written policies, directives, rules, and regulations to ensure the exercise of that authority within those limits; (3) to provide training for officers in how to exercise the discretionary authority granted; and (4) to outline a formal procedure for agency accounta
bility to the community when the authority has been exercised. The commenters stated that the regulations are insufficiently specific and detailed on each of these subjects.
While the Service agrees with many of the suggestions regarding appropriate law enforcement standards as consistent with Department policy applicable to all law enforcement agencies, the Service disagrees that these regulations are either the appropriate vehicle to specify the detail of such standards, or that Congress mandated such a degree of specificity. The commenters effectively requested that the Service and the Department provide specific guidelines for discretionary decisions under other legal cons
traints and sound judgment, detailed procedures of daily operation, and substantive training materials, timetables, and protocols that are encompassed in enforcement manuals, supervisory review procedures, and training curricula. For reasons discussed in greater detail below, the Service will not provide this information and guidance in regulatory form; the Department declines to make an exception to standing policies for the management of the criminal justice system in the Executive Branch.
The suggestions made by these comments are appropriately directed to the functions of training and management, not administrative rulemaking. The Service and the Department agree with many of these suggestions, and, as noted below, have either incorporated them into existing training and management guidelines or are in the process of doing so. A section-by-section discussion of these comments follows.
Section 287.1(g) - Training
The commenters criticized Sec. 287.1(g) for not providing sufficient detail regarding the substance of the training that must be completed by Service officers prior to assuming the new enforcement authority provided by section 503 of IMMACT. The commenters noted that neither the course subjects, length, nor materials are specified, and stated that the regulations should at the very least indicate how the curriculum of existing Service training programs will be amended.
The commenters also alleged that "nothing new" is added by these regulations because all Service officers have already completed one course of basic immigration law training. The commenters suggested that the regulations should require that Service officers attend additional training before assuming additional enforcement authority. Finally, the commenters suggested that the regulations should require periodic attendance by Service officers at national or local training events devoted to new legal standar
ds, case decisions, and Service interpretations of the law.
In response, the Service notes that these commenters appear to have assumed that Service officers who have previously completed a course of basic immigration law enforcement training will not be required to undergo additional training before being authorized to undertake the enhanced enforcement authority prescribed in section 503. However, Sec. 287.5(c)(4)(iii) of the proposed rule specifically stated that no immigration officer could assume enhanced arrest authority until the Director of Training had cer
tified that the immigration officer had completed a training course encompassing such arrests and the standards for enforcement activities specified in Sec. 287.8 of the regulations. Virtually all affected officers will receive additional training during the planned one-year interval between the publication in the FEDERAL REGISTER of this final rule and its effective date. This training is currently being developed in conjunction with other components of the Department to ensure that the training is consi
stent with existing training on the execution of law enforcement authorities and the investigative and prosecutorial policies of the Department.
The Service agrees that existing training courses in basic law enforcement should be amended to include the training required by section 503; these curricula are in the process of being revised. Furthermore, the Service agrees that officers should receive training throughout their careers regarding new statutes, legal precedent, and policies for enforcement. Service guidelines and training programs will be continually updated to meet these needs. Precisely because judicial precedent and the Department's
investigative and prosecutorial policies are constantly evolving, the Department concludes that it is not appropriate to further specify in regulations the curricula or frequency of training programs. Moreover, daily supervision to ensure compliance with legal standards enunciated by Congress and the courts is generally more effective and efficient than developing detailed statements in the form of regulations that cannot provide guidance in all situations.
Sections 287.5(a)(1) and 287.8(b) - Power to Interrogate and Detain
The commenters suggested that the concept of a "show of authority" to restrain the freedom of an individual to walk away under Sec. 287.8(b)(1) be expanded to specifically include verbal or psychological abuse. The term "show of authority" in the proposed rule was intended to emphasize that intimidating gestures are prohibited during pre-detention questioning. However, the Service has decided to eliminate the term "show of authority" as well as the language "by means of physical force" in the final rule,
thereby clarifying that any action taken by an immigration officer during pre-detention questioning must not lead the person being questioned to believe that he or she is not free to leave the presence of the officer. The Service's training program will ensure that all immigration officers have a thorough understanding of proper procedures for conducting pre-detention questioning.
The commenters also suggested that Sec. 287.8(b)(2) be substantially amended to include current judicial precedent defining "reasonable suspicion" and the general authority to interrogate and detain. Binding judicial precedent such as
Brewer v. Williams
, 430 U.S. 387 (1977), is subject to revision in the ongoing process of litigation, and would not be appropriate to codify.
Sections 287.5(c) and 287.8(c) - Power and Authority to Arrest
The commenters generally stated that the provisions in Sec.Sec. 287.5(c) and 287.8(c) do not incorporate the "standard with respect to enforcement" mandated by section 503 of IMMACT. The commenters suggested that the regulations be amended to incorporate the judicial construction of "reason to believe," and to require compliance with outstanding court orders regarding arrest and post-arrest procedures. As stated previously, judicial precedent and other policy standards are subject to revision and are not
appropriate to codify. The Service is clearly bound by such interpretations, including those set forth in
Gerstein v. Pugh
, 420 U.S. 103 (1975). Furthermore, the Service is bound to comply with outstanding court orders, and a regulatory provision to that effect is unnecessary. The commenters also suggested that the specific provisions of a temporary settlement agreement in
Lopez v. INS
, No. CV 78-1912-WMB (C.D. Cal. August 24, 1992), be incorporated into the final rule. The Service declines this suggestion for the previously stated reasons, as well as for the fact that nothing in the
case has required the Service to promulgate regulations on this subject.
One commenter criticized these sections for permitting individuals who have not fulfilled the statutory training requirement for enhanced arrest authority to be designated as service officers with arrest authority. However, all officers who are designated to have such authority must receive the appropriate training pursuant to Sec.Sec. 287.5(c)(4)(iii) - (iv). The commenter also stated that Sec. 287.5(c)(5), in specifying the authority for arrests under section 274 of the Act, failed to distinguish adequa
tely between arrests with and without a warrant. However, this section of the rule incorporates the enforcement standard regarding arrests set forth in Sec. 287.8(c), which includes a rule requiring officers whenever possible to obtain a warrant prior to arrest. In criminal cases, pursuant to Sec. 287.5(c)(2) and (3), the issuance of such a warrant is reviewed by an Assistant United States Attorney and a Magistrate Judge before an arrest is effected.
Sections 242.2(c)(1) and 287.5(e)(2) - Arrest Warrants
The commenters stated that Sec. 242.2(c)(1) should be amended to provide that an arrest warrant must be obtained unless there is a likelihood of the alien escaping before a warrant can be obtained. This suggestion calls for codification of the judicial precedents concerning exigent circumstances. For the reasons stated previously, the Department does not deem it appropriate to amend this rule to reflect evolving judicial standards. Such standards are incorporated into Service training programs, enforceme
nt guidelines, and manuals.
The commenters also suggested that the rule should specify which factors Service officers should use to determine the likelihood of escape. This is the type of discretionary detail that is appropriate in a training course and manual, but not in a regulation. Finally, the commenters suggested that evidence obtained in violation of rules requiring warrants should be suppressed in civil deportation hearings. The Department declines to extend by regulation into civil proceedings the exclusionary rule, which
has heretofore been applied exclusively in criminal proceedings.
Sections 287.5(d)-(e) and 287.9(a) - Searches
The commenters stated that the rule should provide specific standards governing searches of persons and property at or inside the border; strip and body cavity searches; vehicle stops and searches of persons and vehicles at or inside the border; and searches of private dwellings and lands. Section 503 of IMMACT does not require such specificity in enforcement regulations. Moreover, for the reasons set forth above, such standards will be appropriately addressed in Service training programs, guidelines, and
Sections 242.2(a)(1) and 287.7(a)(1) - Detainers
The commenters stated that the authority for issuance of detainers in Sec.Sec. 242.2(a)(1) and 287.7(a)(1) of the proposed rule was overly broad because the authority to issue detainers is limited by section 287(d) of the Act to persons arrested for controlled substances offenses. This comment overlooked the general authority of the Service to detain any individual subject to exclusion or deportation proceedings.
8 U.S.C. 1225(b), 1252(a)(1). The detainer authority of these sections of the proposed rule were promulgated pursuant to this general authority. The statutory provision cited by the commenters places special requirements on the Service regarding the detention of individuals arrested for controlled substance offenses, but does not delimit the general detainer authority of the Service.
Section 287.8(d) - Vehicle Transportation
The commenters suggested that the Service install seat belts in all vehicles transporting people. Current regulations under which all motor vehicles, except buses, are manufactured require the factory installation of seat belts. While the Service strongly agrees with the substance of the suggestion, it would be inappropriate to include any additional requirements within an administrative rule. The reference to seat belts has been deleted in the final rule because the standard governing the use of seat be
lts will be thoroughly addressed in Service training programs, guidelines, and enforcement manuals.
Section 287.8(e) - Vehicular Pursuits
The commenters stated that the provisions of this section provided inadequate protection to public safety from accidental injury and death resulting from collisions following high-speed vehicular pursuits. The commenters suggested that the rule provide that a vehicular pursuit may not be initiated "when there is imminent danger to the life and safety of innocent third parties." In response to a number of publicized incidents, the Service revised its guidelines and procedures governing vehicular pursuits.
However, it would be inappropriate for the Department to codify the standard suggested by these commenters in the final rule. The standard is both unduly restrictive and underinclusive. Actual operating standards for Service officers must permit greater discretion and also specify in greater detail the criteria that should be considered in deciding whether to undertake a pursuit.
The commenters also suggested that officers should be required to successfully complete a separate course in vehicle pursuit prior to having authority under this section. The Department agrees that only those officers specifically trained in pursuit techniques should be authorized to undertake a vehicular pursuit. The only such officers at present who have received such training are border patrol agents. Accordingly, this section has been amended to delete the designations of special agents and deportati
Sections 287.8(f) - Site Inspections
The commenters stated that this section was legally insufficient and should provide more detailed requirements concerning the obtaining of warrants and consent for site inspections, the determination of "exigent circumstances," and standards and procedures for detention. Commenters specifically suggested that the rule incorporate judicial precedent based on the Fourth Amendment to the Constitution concerning the issuance of warrants, the obtaining of consent to enter a premises, and the detention of person
s subject to questioning; that officers engaged in site inspections be trained in standards of enforcement and procedure pertaining to site inspections; that Service officers not deliberately provoke flight by persons in order to justify entry onto a premises; and that Service officers avoid "unnecessary embarrassment" of persons subject to site inspections, as well as verbal abuse, psychological abuse, threats, and unnecessary physical force.
The Service agrees with the substance of most of the suggestions made by the commenters, but has not incorporated these suggestions into the final rule. For the reasons stated previously, the Department does not consider it appropriate to incorporate evolving judicial precedent into regulations. Such precedents are included in Service training programs, guidelines, and enforcement manuals. In addition, many of the procedural suggestions made by these commenters either are included in current Service trai
ning programs, guidelines, and enforcement manuals or will be considered for inclusion in these materials.
The Department has also revised the ordering of the paragraphs within this section and has revised the text of paragraph (2) in the proposed rule, now designated as paragraph (4). The purpose of these changes is to clarify that the conditions set forth in this section for the conduct of site inspections do not restrict the authority of Service officers to enter into any area of a business or other activity to which the general public has access or onto open fields that are not farm or other outdoor agricul
tural operations without a warrant, consent, or any particularized suspicion.
Sections 287.5(f), 287.8(a) and 287.9 - Use of Force and Firearms
The commenters criticized these provisions of the proposed rule on a number of grounds. The commenters stated that the rule failed to address the 27 recommendations presented in the Audit Report, "Immigration and Naturalization Service Firearms Policy, September 1991," prepared by the Department's Office of the Inspector General, Audit Division. The commenters asserted that the rule's statement that standards on the use of force are based on a force continuum model taught at the Federal Law Enforcement Tr
aining Center is inadequate and that the rule should adopt the recommendations of standards for law enforcement agencies developed by the Commission on Accreditation of Law Enforcement Agencies. The commenters also stated that the rule was too narrow in its statement of the authority to carry firearms; the commenters recommended that the rule adopt guidelines that reflect the "multiple psychological dimensions" that might influence an officer's behavior. The commenters also urged that the rule incorporate
a statement of 15 Shooting Reduction Techniques published in 1985 by the American Bar Foundation. The commenters stated that the principle of proportionality must be specifically set forth in the rule's guidelines on the use of force along with more specific guidelines on the use of force in specific situations that immigration officers are likely to encounter.
The Service agrees that many of the recommendations made by the commenters are sound and should be incorporated into the training of immigration officers. In fact, a significant portion of the Service firearms training program is devoted to judgment shooting that includes providing specific scenarios that immigration officers are likely to face. However, as a matter of Departmental policy, it is not appropriate to incorporate such detailed guidelines for law enforcement activities into administrative rule
making. Most of the recommendations made by the Inspector General in the Audit Report have been, or are in the process of being, adopted or implemented by the Service. The commenters noted that, in a letter dated August 7, 1991, the Commissioner stated that the issues raised by the Audit Report would be addressed in the process of drafting these regulations. The recommendations of the Audit Report have been taken into account in the formulation of this rule. Given the increased training that has been an
d is being developed, no specific response to these recommendations is provided in the regulatory text.
Several of the commenters criticized the designation of certain Service officers to carry firearms. The Service disagrees with the suggestion that there is no justification for immigration inspectors or deportation officers to carry firearms; this authority is consistent with Department policy in the implementation of other criminal law enforcement authorities. Such authority is commensurate with the responsibility of such officers to exercise general arrest and control authority at frequent points of con
tact with potential criminal offenders. These officers have also been authorized to carry firearms for many years. The same commenters criticized the rule's delegation to the Commissioner of authority to designate certain other immigration officers to carry firearms, and stated that any such designations must be the subject of proposed rulemaking in accordance with the Administrative Procedure Act (APA). Neither section 503 of IMMACT nor the APA requires such discretionary grants of law enforcement autho
rity, made within general guidelines set forth in regulations, to be the subject of rulemaking. Withdrawing the authority to make such designations would constitute an unwarranted burden on effective law enforcement. Moreover, the Commissioner's action is subject to approval by the Deputy Attorney General because the authority to carry a firearm is a traditional criminal law enforcement authority, not an authority intrinsic to the Service.
The commenters also criticized Sec. 287.9(b) for failing to specify procedures to be followed in the investigation of a shooting incident involving a Service officer and for failing to provide specific rules regarding loss or theft of an approved firearm, inventory controls on firearms and ammunition, and care and storage of firearms and ammunition. Section 287.9(b) of the proposed rule stated that these matters would be addressed in guidelines promulgated by the Commissioner. It is the view of the Depart
ment that since all of these matters relate to internal administration, review, and discipline, the level of detail suggested by the commenters is not appropriate for administrative rulemaking, but should be addressed through operational guidelines. The requirement that these matters be governed according to guidelines promulgated by the Commissioner satisfies the congressional mandate set forth in section 503 of IMMACT.
The commenters also criticized the authorization in Sec. 287.9(b) for Service officers to carry personally owned firearms while on duty, claiming that this will blur the distinction between official and personal use of firearms and inhibit Service control over the use of firearms. The proposed rule required that all firearms, including those personally owned, be approved subject to guidelines to be promulgated by the Commissioner. The authority to utilize a Service-approved, personally owned weapon is nee
ded to respond to the physical diversity of the Service law enforcement workforce, including specific individual characteristics such as the size of an agent's hand. For example, many firearms do not comfortably fit in some smaller or larger hands. Accordingly, the rule is designed to allow flexibility while assuring that each individual agent's firearm has been approved. This is consistent with Departmental policy for the law enforcement community.